APV counsel: Homeowners’ claims not valid

Article Courtesy of The Osceola News-Gazette

By Ken Jackson

Published February 24, 2017


While homeowners in Poinciana have filed suit against their homeowners association, the Association of Poinciana Villages (APV), the HOA’s lawyers are working to have the case dismissed.

The homeowners are suing because they believe that the HOA has failed to live up to the tenants of its original founding agreements filed in 1985.

The APV, like AV Homes (formerly Avatar) and the Village One Association before it, has filed a motion to dismiss the suit. The suit accuses the three entities of breach of contract and “breach of fiduciary duty,” essentially collecting HOA assessments when it had no standing to do so because of failing to follow the 1985 agreement. That agreement called for Avatar to turn over control of its parcels to the association.

Slaten couldn’t speak to the other motions, but he said the basis of APV’s motion was to ask 10th Circuit Court Judge Larry Helms to recognize that the homeowners’ claims aren’t valid.

The homeowners named in the suit — Peter Jolly, Annette Brown and Victor Destremps — did not live in Poinciana in 1985.
“You can’t sue for breach of contract if you weren’t a party to it,” Slaten said. “We don’t argue that they aren’t third-party beneficiaries, but the restrictions only apply to the developer (AV Homes). In most ways, this Avatar’s fight, not the APV’s.”

In APV’s motion, it claims the homeowners did not give APV 20 days to seek state-mandated mediation before filing suit just six days later on April 26, 2016.

The homeowners also claim that since the APV’s covenants were never renewed under the Marketable Record Title Act (MRTA), the entire 1985 agreement is null and void and cannot hold officer elections like it did Feb. 14.

Not so fast, Slaten said.

“They don’t identify any of the expired documents (in their suit),” he said. “They aren’t referenced. MRTA does not cause some documents to expire. Some are subject to exemptions. I know they claim we’re dragging this process out with this request, but we’re asking to understand what documents are being referenced.”

Slaten also reported that at the recent APV Master Board’s meeting, he nominated his firm, Larsen and Associates of Orlando, to serve as the association’s debt collector. Ultimately, it was tabled, but he said it would be a move that would help the community.

“The association has used a couple of different agencies to collect. I would take my direction directly from the board,” he said. “Our proposal would offer less fees than other agencies and more protection for homeowners.”